M & S Investments (NSW) Pty Ltd v Carbone [2022] NSWLEC 24

Land and Environment Court New South Wales

Medium Neutral Citation: M & S Investments (NSW) Pty Ltd v Carbone [2022] NSWLEC 24 Hearing dates: 1 February 2022 Date of orders: 1 February 2022 Decision date: 01 February 2022 Jurisdiction: Class 5 Before: Duggan J Decision: See paragraphs 25 to 28 Catchwords: PRACTICE AND PROCEDURE — Notice of Motion to set aside notice to produce — whether appropriate to require production where no disclosure order made pursuant to s 247E of Protection of Environment Operations Act 1997 (NSW) — s 219(2) of Protection of the Environment Operations Act 1997 (NSW) — abuse of process or lack of prima facie case — whether documents sought in notice to produce required for purposes of hearing — relevance of documents sought — reasonableness of request — Notice of Motion to set aside notice to produce dismissed — Notice of Motion to vacate previous orders and require compliance with notice to produce granted Legislation Cited: Criminal Procedure Act 1986 (NSW) Protection of the Environment Operations Act 1997 (NSW) Category: Procedural rulings Parties: M & S Investments Pty Ltd (Prosecutor) Angela Carbone (Defendant) Representation: Counsel: R Tripodi (Prosecutor) R Coffey (Defendant)

Solicitors: Watson Stafford Zipkis (Prosecutor) Swaab (Defendant) File Number(s): 261163, 261164, 261165 and 261166 of 2021 Publication restriction: No

EX TEMPORE Judgment 1. HER HONOUR: The Defendant has issued a Notice to Produce to the Prosecutor to produce the following documents: 1. Correspondence with potential witnesses, including any deed(s) or other agreement(s) proposed or entered into with any potential witnesses; 2. Affidavits or statements of witnesses proposed to be called; 3. Affidavits or statements of witnesses not proposed to be called; 4. Advanced notice of discrepancies between an affidavit or statement and the evidence proposed to be led; 5. Prior convictions of prosecution witnesses and other material relevant to credit; and 6. Material which could reasonably be seen to be capable of assisting the defence case. 1. The Notice to Produce was filed with the Court on 10 December 2021. The Notice to Produce was returnable on 17 December 2021. At a mention before the Acting Registrar on 15 December 2021 the party being the Defendant that issued the Notice to Produce requested, upon the Notice to Produce being called and no documents being produced, that the matter be listed before the List Judge on 16 December 2021, being the last day of term. That listing was made. 2. Subsequently, after the mention had been completed, the Acting Registrar on 16 December 2021 made orders; 1. Vacating the listing date of 16 December 2021; and 2. Listing the Notice to Produce for directions on 7 February 2022. 1. The Defendant and other Defendants in the proceedings have filed Notices of Motion dated 6 December 2021 seeking inter alia that the summons be struck out or permanently stayed. That application is listed for hearing on 7 February 2022 (the Strikeout Motion). 2. The Defendant contends that the documents sought in the Notice to Produce are required for the purposes of the hearing of the Strikeout Motion. The Defendant has filed an Amended Notice of Motion dated 27 January 2022 seeking orders relevant to this hearing: 2(a). The following orders made by the Acting Assistant Registrar on 16 December 2021 on 16 December 2022 are vacated: '1. Notice to produce listed 17 December 2021 is vacated. 2. Matter listed for directions 7 February 2021 [sic]'. 3. The Prosecutor be ordered to comply with the Notice to Produce issued on 10 December 2021 on behalf of Ms Angela Carbone within 48 hours. 4. The Prosecutor be ordered to comply with its ongoing Duty of Disclosure to Ms Angela Carbone within 48 hours. 5. Costs. 1. The Prosecutor has filed a competing Notice of Motion filed on 27 January 2022 seeking orders: 1. Set aside the Fourth Defendant's Notice to Produce filed and issued on 10 December 2021. 2. Dismiss the Fourth Defendant's Notice of Motion filed 24 January 2022. 3. Costs. 1. These two Notices of Motion come before me today for determination. It is appropriate that I deal with the Prosecutor's Notice of Motion first and then, if necessary, the Defendant's Amended Notice of Motion.